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Letter on the October 17 Thematic Debate at the Security Council on the Council's Relationship with the ICC

ICC States Parties Should Urge a Principled Relationship between the Security Council and the Court

Dear Foreign Minister,

We are writing in regard to the United Nations Security Council (Council) thematic debate on October 17 on “Peace and Justice, with a Special Focus on the Role of the International Criminal Court.” This debate, convened under Guatemala's Presidency, will examine the relationship between the Council and the International Criminal Court (ICC).

We believe the session offers ICC state parties, both on and off the Council, a unique opportunity to urge the Security Council to manage its relationship with the ICC in a principled, consistent way that better ensures accountability for the most serious crimes while respecting the needs of the Court.

Because judicial legitimacy and the court's credibility require independence from political interference, it is not surprising that the Council’s authority to refer situations of grave crimes in non states parties would be a source of controversy.

While some assert that Council referrals politicize the resulting ICC investigation and prosecution, the Security Council’s “triggering function” is authorized by the Rome Statute. Once the Council makes a referral, court officials are obligated to apply the provisions of the Statute as they would for a state referral. The Council’s referral authority, in situations threatening international peace and security, significantly extends accountability for grave international crimes where there would otherwise be impunity.

However, Council selectivity and double standards in making—and failing to make—referrals undermines the appearance of the court's independence. Indeed, the Council has referred situations only twice, in regards to the Darfur region of Sudan in 2005 and Libya in 2011. Meanwhile, the Council has failed to act in other situations where grave international crimes have occurred. Until now, there is no apparent coherence in the practice of Council referrals.

This perception is aggravated by the role of the Council’s three permanent members, China, Russia, and the United States, that are not ICC states parties. Through their non-ratification and veto power as permanent Council members, they are in effect insulated from the court they have twice mandated to consider investigating crimes in other non state parties. Practically, these three powerful non states parties have also shielded some of their respective allies from the reach of the ICC, creating a virtual “accountability free zone” that includes Syria, Israel and the Occupied Palestinian Territories, and Sri Lanka, to name a few.

There have also been significant problems in the language of the Council’s referrals. Both referrals (resolutions 1593 and 1970) contained provisions that imposed the entire financial burden of investigation and prosecution on the court and its states parties. Moreover, both resolutions allowed exemptions for the nationals of third non states parties should they be implicated in serious crimes committed in the country situation referred. These provisions should not be repeated in the future.

The danger of political taint for the court is further exacerbated by Council inaction following referral. When the Council has tasked the court to address mass atrocity crimes it has then failed to insist on full cooperation with the court. This "on again, off again" support makes the court seem like an ineffective instrument of short-term political interests at the Council.

The Council’s power, under article 16 of the Rome Statute, to suspend ICC investigations for 12 months in the interest of international peace and security has also generated controversy. Although the Council has never used its deferral authority, there have been attempts to invoke article 16 to suspend the Darfur investigation. Yet, the risks inherent in a deferral are profound. These include the possibility of those associated with egregious crimes holding the Council hostage by threatening further crimes to obtain a deferral and see it renewed.

We believe the October 17 debate provides an unprecedented chance for states parties to weigh in on these issues. It is a moment to call on the Council to reflect on its accountability policy and work towards a more meaningful approach towards grave international crimes. This could help reduce selectivity in referrals, repetition of unacceptable substantive provisions in referring resolutions, and the lack of diplomatic support following a referral.

We strongly recommend your government use the October 17 debate to call for coherence in the Council’s approach to ICC referrals. This could help contribute to making the Council’s international justice practice more meaningful.

In addition to asserting a thoughtful, principled view, like-minded ICC states parties could pierce the monopoly of opinion on this important matter in which, up until now, the Council has been seen to be the exclusive stakeholder.

Fortunately, there is serious policy discussion to draw on. Over the course of the last year, several conferences (International Peace Institute, November 2011; Chatham House, March 2012) have identified constructive ideas on these issues. These have been widely circulated and may be helpful to your delegation in advance of the open debate.

In particular, we encourage your government to urge the Council to:

Develop a coherent approach for referrals of situations to the court to avoid double standards;

Request the United Nations to fund investigations and prosecutions resulting from Council referrals in order to enable the court to discharge its mandate effectively;

Avoid provisions in referral resolutions that shield nationals of third non states parties;

Commit to providing follow-up support to the court following referrals to ensure that it receives all the needed cooperation;

Act on ICC judicial notifications signaling a lack of cooperation in situations resulting from a referral; and

Recognize that deferrals of investigations and prosecutions at the ICC should only happen in the most exceptional circumstances.

While not necessarily leading to any quick change in practice, asserting a principled approach could create better informed expectations that could, in turn, influence Council action on accountability.

We urge your government to include these same points in the General Assembly’s plenary debate on the International Criminal Court at the end of October.

Of course, do not hesitate to contact us if we can be of any assistance.

Sincerely,

Richard Dicker

Director, International Justice Program

Philippe Bolopion

United Nations Director

Cc: Permanent Representative to the United Nations

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